Davis v. Guam

The Supreme Court has denied Guam’s petition for certiorari, in Davis v. Guam, bringing a successful close to CIR’s nine-year fight to overturn the territory’s racially restrictive plebiscite law. With this order, CIR’s recent Ninth Circuit victory will stand in its entirety, and Guam will not be allowed to conduct a vote that discriminates on the basis of race.

In July, lead counsel Gibson Dunn’s Luke Townsend won a major victory in the Ninth Circuit Court of Appeals, challenging a plebiscite law designed to shape the future of Guam’s political status. The court rightly ruled that Guam’s law violated the Fifteenth Amendment’s prohibition on racially restrictive voting laws because it limited the vote to “Native Inhabitants,” a term that was carefully designed to reach only members of the Chamorro racial group.

Guam petitioned the Supreme Court to review the Ninth Circuit decision (petition for certiorari). Denial of certiorari marks the end of the appeals process. CIR’s victory in the Ninth Circuit will serve as an important Fifteenth Amendment precedent going forward, ensuring that race will be kept out of elections, in Guam and on the mainland.

CIR challenges Guam plebiscite

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IR is representing Guam resident Arnold Davis in a federal lawsuit challenging a race-exclusive plebiscite on the question of whether Guam should seek independence from the United States, statehood, or some other relationship.

Although a territory of the United States and subject to the Constitution’s guarantees of non-discrimination, Guam law permits only those who meet the definition of “Native Inhabitants of Guam” to vote in the plebiscite. CIR’s complaint alleges that the definition of this term was designed to limit the vote to “Chamorros,” a racial designation referring to the original inhabitants of Guam and their descendants. This group comprises about thirty-six percent of the population of Guam. The law pointedly excludes most Caucasian, black, Korean, Chinese, and Filipino citizens of the United States living on Guam and otherwise registered to vote in Guam elections.

Having been a territory of the United States since 1898, Guam apparently has decided to hold a referendum on its future relation with the United States without allowing nearly two-thirds of its lawfully registered voters to vote — all of them citizens of the United States.

DOJrefused to act

As troubling as this overtly discriminatory law is, even more difficult to comprehend is the federal Department of Justice’s s original failure to take action against it. Despite its clear authority to enforce federal laws prohibiting race discrimination in voting, the Justice Department declined to intervene when presented with a complaint by Guam resident Arnold Davis, the plaintiff in CIR’s suit. Davis, a retired officer in the U.S. Air Force, was told he couldn’t register because he was not descended from a native inhabitant; Davis communicated all this to Department officials, but the Department declined to pursue the matter, reportedly because Obama officials did not want to devote resources to challenging voting discrimination against non-minorities. The Trump Administration reversed this policy and filed a brief on Davis’s behalf.

Co-counsel J. Christian Adams

The Guam plebiscite bears a strong similarity to Hawaiian laws that formerly limited certain elections to Native Hawaiians. The Supreme Court declared such laws unconstitutional in Rice v. Cayetano in 2000. Presumably to get around this problem, Guam claims its plebiscite is not limited by race, but only to native “inhabitants.” But this turns out to be a pretext — the law defining “native inhabitant” excludes virtually everyone but “Chamorros.” And even if “native inhabitant” didn’t exclude other racial groups, it would still violate the Constitution. Voting cannot be conditioned on the accident of one’s descent. It must be available to all residents on the same terms.

Racial politics

Guam’s status as a U.S. territory has enabled the island to attract individuals from many other countries, notably Korea and the Philippines, who now call Guam their home. In addition, U.S. citizens, including retired members of the U.S. military, have become permanent residents of the island. Yet now, almost two-thirds of the island’s residents face disenfranchisement at the hands of the controlling racial group.

The plebiscite is part of a political campaign being waged by a group of Chamorros intent on preserving their power over island affairs. Their tactic is the odious one of building a racial identity for a favored “native” race in opposition to “other” races. Understanding the irrationality of this kind of racial politics, the Constitution does not permit legal classifications built on race.

Though it would be theoretically possible for Guam to secede from the United States in order to pursue its campaign of racial identity, it is not acceptable for it to claim the authority and protection of the United States Constitution and its laws all the while flouting their fundamental principles. And no principle is more fundamental to American democracy than the idea that all citizens have the right to vote regardless of race.

Background Articles

How often do you see this? A federal judge praises counsel — specifically, J. Christian Adams of the Election Law Center, Douglas R. Cox of Gibson Dunn, Michael E. Rosman of the Center for Individual Rights, and local counsel Mun Su Park — for their “conscientious billing practices.”

Chief Judge Frances Tydingco-Gatewood of the District Court of Guam awarded $947,717 in attorneys’ fees and costs, in a civil rights action that dealt with the topic of self-determination of the political status of the island and who should have the right to vote on a related referendum. The court noted that had the Department of Justice taken responsibility to address the issue 10 years ago, the amount of fees …

Gov. Eddie Calvo and Attorney General Elizabeth Barrett-Anderson voiced optimism that the government of Guam quest for a political-status plebiscite that limits voting to “native inhabitants of Guam” will get a federal appeals court’s approval.

The government of Guam argued Wednesday before a Ninth Circuit panel at the University of Hawaii that it is not unlawful to limit non-native residents from voting on the territory’s future political ties with the United States.